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Abstract

This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place.

Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would have prohibited them from marrying - whether because they moved to a new state, had contracted an "evasive" marriage in another state in violation of their home state's laws, or had some transient contact with a state to which validity of their marriage was relevant. Those conflicts were resolved, by and large, according to principles of comity, which were reflected in the established rules governing conflict of laws. Those rules dictated that states should generally recognize marriages that were valid where celebrated unless doing so interfered with an important public policy or interest of the destination state.

This "place of celebration" rule was subject to both categorical and semi-categorical exceptions. Fifteen years ago, one might have applied this rule and its exceptions to a hypothetical situation involving same-sex marriage in Massachusetts and made the following predictions: a same-sex marriage from one state would certainly be recognized if it was celebrated by a couple who legitimately resided in Massachusetts and later moved to another state; an evasive same-sex marriage might also be recognized in some states, though not as predictably so; and particular "incidents" of such a marriage might be recognized for limited purposes like inheritance rights in many states, even if the right to cohabit within the state as a married couple was not.

The landscape, however, has completely changed. In response to a fear that Hawaii might legalize same-sex marriage in the mid-1990s, Congress enacted the Defense of Marriage Act defining marriage for federal purposes to exclude same-sex marriage and giving states the power to deny recognition to same-sex marriages. More than forty states expressly exercised it by adopting statutes or constitutional amendments to preclude courts from authorizing or recognizing same-sex marriages. These enactments were all based on the assumption that the Full Faith and Credit Clause compels one state to recognize marriages from other states regardless of their own laws or policies. The Full Faith and Credit Clause, however, has never been understood to have that effect. To the contrary, states have always had the right to refuse recognition to out-of-state marriages. Thus, while states were busy "protecting" themselves from compelled recognition, they lost the right of voluntary recognition, a right exercised considerably more often, historically, than the right to deny recognition. Principles of comity and the portability of marriage have been sacrificed in this process, and the complexity of the analysis that courts have traditionally undertaken has been short-circuited in favor of an unflinching rule of blanket non-recognition.

The paper reconsiders the traditional approach to marriage recognition against the current same-sex marriage landscape. It examines whether, under conventional principles of interstate marriage recognition, states that have enacted barriers to recognition have done so successfully. It also examines the question of recognition in the states without any affirmative barrier.